An Effective Civil Justice System General Law - Free Essay Example

Sample details Pages: 13 Words: 3882 Downloads: 4 Date added: 2017/06/26 Category Law Essay Type Argumentative essay Tags: Justice Essay Did you like this example? An insight into the civil process before the present change was first made by Charles Dickinson in his novel bleak house The civil justice process is in many respect quite different from the criminal justice system .the criminal justice system pits the state and its agencies the citizen while civil justice system essentially involves different individuals, companies etc But civil justice process is a complex social process. It is important to note that an effective civil justice process is one which is effective as justice delayed is justice denied. In 1995 a survey by national consumer council found that 3 out of every 4 people in serious legal dispute were dissatisfied with the civil justice system According to the civil justice review 1998 the civil justice system was costly, unfair, and ineffective .It caused anxieties, tress and economic fears amongst people and as a result people usually hesitated from being involved in the process of litigation. Don’t waste time! Our writers will create an original "An Effective Civil Justice System General Law" essay for you Create order In the past, there have been many review carried out But the biggest attempt to reform the process has been carried out as a result of measures introduced in the report made by lord Woolf  [2]  . The present system of civil justice is based on the reform recommended by Lord Woolf In 1994 conservation government appointed lord Woolf to head a review into the civil system .In his report access to justice 1996 lord Woolf identified fundamental problem with the system and suggested ways to over come them The final format of report contained 303 recommendation and it was published in July 1996 The changes proposed by lord Woolf were widely supported by the government, trade unions, opposition etc the government approved most of the reforms Lord Woolf began form the proposition that the system was in a state of crisis a crisis for the government ,the judiciary and the opposition .consequently in 1997 the civil procedure act was passed to in torduce necessary changes .in 1998 t he civil procedure rules were passed these rules produced one simplified set of rules for the high courts and county courts The rules were drafted in plain English ,introduced judicial case management ,and were in line with the recommendations of lord Woolf The basic objective of the civil justice system proposed by lord Woolf are that the system should aim to be just ,accessible efficient ,timely, effective however the report access to justice found that virtually none of these points was being achieved in the civil courts and criticised the system for being unequal .expensive ,slow uncertain and complicated  [3]  .lord Woolf claimed that the civil justice system had become excessively slow complex and expensive there was undue complexity of law and courts procedure ,uncertainty about how much time ,money would be required and unfairness the main aim of the proposal are were stated as cutting delay reducing expenses and simplifying the process of litigation Mainly there a re three main aspects to the reforms Judicial case management Pre actions protocols ADR (Alternative dispute resolution) Firstly Woolf recommended that as opposed to the past ,case management by judges should be encouraged case management is probably that most significant reform .This new system allocates case to one of the three tracks ,depending upon their financial value and complexity which are small claims ,fast track ,multi track. Small claims deal with claims less than 5000 pounds and deals with cases regarding consumer disputes, personal injury etc. The process is quick, cheap and simple .No legal aid is provided for small claims .however the fee of courts is very nominal. A person ay resent himself without a lawyer. But its disadvantage will probably be facing a large company with trained experienced lawyers. Fast track deals with cases having claim between 5000 pounds to 15000 ponds .these cases are heard in county courts. A strict but reasonable time tables is se to bring the case to the trail. No oral evidence is heard. Instead voidance will e read form prepared statement. Each side is only permitted to use one expert witness. Lord Woolf also proposed the idea f fixed rate for lawyers. but this deal has received much criticism and little support form legal profession. Multi tracks deals with cases having claimed more than 15000 pounds these cases are heard in high courts. Unlike fast track, flexibility in the date of trail is given .more over judges ill be given the training to manage cases now judges is under an obligation to manage case actively. This includes encouraging cooperation between the parties; identify issues at an early age etc. Previously lawyers were at liberty to take inordinate time to solve things, related to the case. Accordingly in an attempt to resolve cases things more quickly, a set of guideline has been established namely pre actions protocols .They are enforced before going to the courts and encourage people to settle, before the case goes to trail. In this respect to protocols have been drawn up to apply in the largest areas of litigation i.e. clinical negligence and personal injury  [4]  . The object of the protocols is to encourage greater contact between the parties at the earliest opportunity, to prevent cases going to the courts. Before lord Woolf proposal the cost of taking action in the civil courts has been great .The old rule that costs follow has been created a great for the parties to settle their claims before the trail. The main focus of the changes is to avoid going to courts wherever possible, instead ADR should be well encouraged. ADR is a process alternative to court action where the parties choose an independent third-party and agree on a certain time table. It is a process of settlement and parties may not agree at the onset to be bound by the conclusion. The term alternative dispute resolution is define in the Glossary to the CPR as a collective d escription of methods of resolving disputes or else than through the usual trial process. In exercise nevertheless references to ADR are usually unspoken as being references to some form of mediation by a third party  [5]  . In recent years there has been, country and overseas, a growth in alternative dispute resolution (ADR) and an growing acknowledgment of its involvement to the fair, suitable and effective resolution of civil disputes litigation is not the only means of achieving this aim, and may not in all cases be the best  [6]  .Conciliation, mediation and arbitration are method of resolving disputes.  Commonly, arbitration is distinguished by the fact that the arbitration decides the dispute, while conciliation and mediation only aim to help the parties to reach a settlement of the disputes. Arbitration is the first of alternative dispute procedure it come into play anywhere the parties have trouble with all other and they want to resolve the dispute outside the court. The benefits of the arbitrations incorporate its solitude, agility, speed and the know-how of many arbitrators. It is generally but not always cheaper than courts.   In arbitrations dispute are dogged with compulsory effect by a person or persons acting in a judicial manner in secret rather than by a court of law that would have authority but for the agreement of the parties to barred. It is not unusual for arbitration to be classed as a form of ADR, but this is potentially deceptive. In many important compliments arbitration has more in common with court-based litigation than other forms of ADR. T he arbitrator does this by making an award and giving the reasons for doing so. Neither parties may then start a court action in relation to the same dispute. The courts will not get in the way with the decision if not the arbitrator acted rudely or unless fresh evidence is introduce and the power for this statement was given where the parties were involved in adjudication under UNICTRAL rules in London. The arbitration took place in private and the award was in print only to the parties. The judgment was not noticeable private and the publishing company Lawtell inward a copy of the judgment, which in good faith it summarised on its website and by email to its 15,000 subscribers  [7]  . The full text of the ruling could be in print. Although the hearing might have been in private, the ruling should be given in public where that could be done without disclose important secret information; there has to be a poise  [8]  . An arbitrator has discretion not to award costs, b ut usually awards reasonable costs to the winning party. The only right to appeal against an arbitrators decision, is through the High Court on a count of serious irregularity, such as a violation of natural justice, the excess of jurisdiction, or a visible error of law. Arbitration can be conducted in private and confidentially. Going to court is a sure way to wash dirty linen in public. Arbitration lets parties choose their own judges each party usually nominating one arbitrator who between them choose a third. Because the majority rules, decisions cant be skewed by a rogue appointee. Parties can choose a neutral venue for the hearing and a neutral language if necessary. Although arbitration takes place under strict rules the process and basis for decision are not as rigidly defined as in court. For example, rules of evidence are not as strict, and parties can usually have a say in how they want the hearing to be conducted. Arbitration can save time and to businesses ti me means money because the arbitrators can tailor the procedure to the dispute and rights of appeal are more limited. And if both sides agree, they can forego appeals completely. The 1996 Act provide that the adjudication procedure is carried out in a legal manner in line with Natural Justice arbitrators are required to give reasons for decision and awards. Arbitration is voluntary but the courts do uphold a supervisory role. IT can be seen in the case where D built a dam in Lesotho Africa for C. The party took a dispute about extra labour costs to an arbitration court in London. The court made reward in sterling and Euros quite than the local Lesothan currency. Under the 1996 Act, a party may apply to the court challenging an award if the court has exceeded its powers. nevertheless, International Chamber of Commerce  [9]  (ICC) Rule provide that all party forego any right of appeal to the courts except for a serious irregularity under the 1996 Act. Where his Lordships refused to disturb the court award. They uphold the principle of great significance of negligible interference in arbitration proceedings  [10]  . The Act was examine textually. A high threshold was required for the courts to intervene in arbitrations.   Ã‚  [11]  Lord Steyn adopt a purposive approach preservation that the 1996 Act was intended to promote one-stop arbitration. A major purpose of the 1996 Act was to decrease radically the extent of interference of courts in the arbitral process. 12The Act has though given English arbitration law an entirely new face and a new foundations. The English court establishment have been replace by the statute as the principal basis of law. The power of foreign and international method and concept is obvious in the book and structure of the Act, and has been openly recognized  [13]  . Finally, the Act embody a new balancing of the associations between parties, advocates, and courts which is not only intended to achi eve a policy proclaim within Parliament and outside but may also have distorted their juristic nature .Arbitration is also available in the county court under the small claims procedure. The supplies of the Arbitration Act 1996 extend to small claims arbitration in the county court and consumer arbitration agreement  [14]  .for example in sec 5 the act requires that in order to make an agreement there must be a written evidence. Secondly the power and the possibility of arbitration in case of contract can be easily seen in the case of Scott v Avery  [15]  where according to arbitration rule an award form the arbitrator is limited  [16]  . ADR in case of employment act 2002 which was made to encourage comprises and settle the effect of pre actions protocols  [17]  . The advisory conciliation and arbitration service was made to protect the employment on order to help or resolve trade dispute in short improve industrial relations . It is simpler to use ACAS  [18]  arbitration service where the decisions is unfair .such cases could arise out of breaches of the parties agreed to bound but the features of is that if the parties some how agreed on certain term the arbitrator is still binded under sec 58, and arbitrator act 1996. According to section 1 of arbitration which is about the freedom to arbitrate lays out the principle that the principle are free to agree and settle there disputes without any interference and the court should not interfere. In detail the court will more often than not not only refuse to interfere but in fact put into effect the arbitration. The acas provides free independent and impartial arbitration to employers and employees who vary which means there are certain rules and the most importantly there are many versions of it such as icc, lcia or American arbitration association. It is helpful in adversarial court system like ours in(uk)  [19]  .The case of dunnett where dunnett kept horses in a field that adjoin ed an inter-city railway line. A gate leading from her field was replaced but could be left open. The workmen said that to fit a lock would be illegal. Three horses escaped and were killed.  The judge found that it had not been reasonable for C to rely on the workmens advice. At the hearing at which permission to appeal was granted, the court stated that the parties should attempt alternative dispute resolution (ADR). The defendant refused outright to consider ADR and offered inadequate compensation and the matter proceeded to the hearing of the substantive appeal it was stated that the court should further the overriding objective of the CPR by encouraging the parties to use ADR (active case management). Furthermore it was stated that the parties were required to help the court in furthering the overriding objective.   To flatly turn down ADR could place the party doing so at risk of adverse consequences in costs won, but no costs order made. Dennett was applied in Leicester Circuits Ltd v Coates Brothers plc [2003] (there is a prospect that mediation will succeed, and an unexplained withdrawal has cost implications) Arbitrators might use there ow n rules even in international disputes which are enforced by Geneva conventions (1927) and the new York convention (1958) . An arbitration clause is commonly used in contact which is used to settle disputes through arbitration process. Generally arbitration is a process through which allows the parties to settle the disputes outside the court but still it is considered as an important part of Making a contact .In united states the federal government has made a written guide line for arbitration clauses to reduce the burden of the courts and authority for the statement was given in the case prima paint crop v flood Conklin mfg co where the supreme court held that a contract can be challenged at any stage if not the arbitration clauses itself has been challenged .Moreover, arbitration clauses is often combined with geographic forum selection clauses, which are also fully enforceable. The result is that a applicant might find himself or herself obliged to arbitrate in a extraordinar y private meeting thousands of miles from home, and the arbitrators may make a decision of the case on the basis of the law of a state or a nation which the applicant has never visited. arbitration clauses has never been challenged but In  Graham v. Scissor-Tail  [20]  the  Supreme Court of California  establish that an arbitration clause in a  contract of adhesion  which essentially puts disputes prior to a body that would tend to be biased towards the defendant is excessively oppressive therefore annulled as  unconscionable. For this reason a lot of arbitration clauses assign widely recognized neutral organization such as the  American Arbitration Association.Other terms may void an arbitration clause In the case of   Armendariz v. Foundation Health Psychcare Services Inc  [21]  where the court held that a one-sided arbitration clause in a contract of adhesion for employment (deemed a necessity) may also be void as unconscionable because of the relative positions of the parties involved. In that case, the court establish that there is a procedural unconscionability where a worker was supposed to arbitration but the employer was not in other words, the agreement lacks mutuality of compulsion. even though in Federal Court, the  United States Court of Appeals for the Eighth Circuit  has lined the exact opposite on mutuality of obligation  [22]  , and substantive unconscionability where the contract limited the damages the employee could recover through arbitration. Some legal orders exclude or restrict the option of arbitration for number of reason, e.g. consumers. For instance German law excludes disputes over the rental of living space from any form of arbitration  [23]  , as arbitration agreements with consumers are only measured valid if they are either signed,  [24]  Ãƒâ€šÃ‚  or if the signed document does not bear any other content than the arbitration agreemen t  [25]  .  The limit does not apply to notarized agreements because it is supposed that the notary public might be well informed and the consumer should have known about the content and its implications..Secondly In keeping with the casualness of the arbitration process the law is usually intense to support the validity of arbitration clauses still when they lack the normal formal language associated with legal contracts. Clauses which have been uphold and therefore includes arbitration in London and English law to apply  [26]  secondly suitable arbitration clause  [27]  thirdly arbitration, by ICC Rules in London  [28]  . More importantly the courts have also upheld clauses which specify resolution of disputes which include provision that a arbitrators must not judge according to the strict law which is generally rule ought to be considered the principles of practical business  [29]  and internationally accepted principles of law governing contractual re lationship.  [30]  Where as in USA the California courts contain the authority to employ a arbitrator to hear and determine any and all discovery motions and dispute relevant to discovery, and to report and to make recommendation  [31]  . A court can appoint a arbitrator on demand of either party  [32]  .A arbitrator may be certain by agreement of the parties file with the clerk enter in the minutes  [33]  . Anywhere the discovery matter is complex and necessary. The court has the power to utilize an arbitrator to hear and decide discovery disputes either without the parties to consent. Appointment of a discovery an arbitrator is authorized nevertheless only where its necessary moreover it is to determine such motions or disputes  [34]  . subsequently the specific needs must be met before a state and the court may order a location. likewise a district court might appoint masters to grip pre-trial matter that cannot be handle effectively in addition appropri ate by an available district judge  [35]  . A master may be appointed to manage discovery activity (e.g., to review discovery documents for privilege A coverlet order direction discovery motions to a arbitrator and improper in routine matters  [36]  .and-exceptional circumstances is needed. But such orders are proper and in unusual cases such as cases in which the inquest essential to decide the dispute will consume inordinate time because of a majority of the following factors exist such as a need for many factors that resolved around and the need to have many motions heard consecutively secondly a pending motion is only one of many where as the need to reconsider numerous and huge documents which is especially in connection with issues based on declaration of a privilege  [37]  . Arbitration has following advantages over court litigation that its less expensive however there are some exception due to allots of parties .secondly exclusionary rules of evidence cant be apply as long as relevant and non cumulative. Thirdly there is no recording of public proceeding in other words kept confidential which is required for arbitration agreement. Fourthly there is less exposure to punitive damages and run amay form juries . More importantly it limit discovery because it control what the parties agreed upon and what they want .furthermore the arbitration process is less adversarial than litigation which helps to maintain business relationships between the parties. When discussing the role of arbitration in relation to courts it is important to discuss the disadvantages of arbitration because in arbitration there is no right of appeal even if the arbitrator make a mistake even if it is related to fact or law .Moreover there are some limitation that it is difficult to define .secondly the arbitration process may not be fast and it may be more expensive and ther is no jury on the foam of claimant point of view which is serious draw back. Thirdly an arbi tration awards cannot be the essential for any malevolent prosecution. More importantly in certain circumstance the arbitration agreement cannot be forced to arbitrate  [38]  . The increase in the use of obligatory arbitration in genuine estate agreements has-been a uprising as compare to photocopy machines, voice mail, facsimile transmission, email, word processing, computers, search engines, text retrievable systems, scanning and automatic redlining. Obligatory arbitration will continue to expand because Public policy that favours arbitration of disputes and the legislative shift of the cost of court house civil trials to the Litigants alike to the shifting of the cost of cleanup of contaminated. Although there are many criticism against arbitration but it should be kept in view that majority of reforms are based around the facts of trying to overcome delay which were mainly caused due to faults in the system. Hence changing it wont reduce the problem, they were due t o deeply in built features of English legal system. By neglecting this fact, the proposed reform might take make matters worse. Michel zander argued that Woolf not commissioned any research on what caused delay .but simply assumed it the way the lawyers operate under adversarial system. The lawyers also complained that the cost at the start of case are heavier than before. if the case is settled early these cost still have to paided . Another flow with arbitration is that some county courts are in efficient and provides delay and poor service . Moverover the instigation of the county and high court is also not too advantageous because hearing both small and large claims in one court would likely result in small claims not getting sufficient consideration. The most significant is probably that there are no precedent .no guideline are provided for future decisions may prove difficult to enforce as the courts do not make them Professor zander also criticised case management as it is only appropriate in a minority courts. he jails that court cannot set suitable timetables as they do not possess enough knowledge of the working of a solicitors office and judges do not have the time or skills to take on such a job . zander also referred to us research that highlighted inconsistency in judicial decisions ,when judges are given more discretion and case management responsibilities . More importantly enforcing arbitration in other countries the court decisions can easily be obtain in one country but still its not so easy to enforce  [39]  . The use of arbitration has proved to be very successful but the binding nature of arbitration is inflexible and for that reason other types of ADR may be more suitable .    Â